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People v. Guillen

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 27, 2020
No. G052022 (Cal. Ct. App. Jan. 27, 2020)

Opinion

G052022

01-27-2020

THE PEOPLE, Plaintiff and Respondent, v. LUIS ALBERTO GUILLEN, Defendant and Appellant.

Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14WF1099) OPINION Appeal from a judgment of the Superior Court of Orange County, Karen L. Robinson, Judge. Affirmed. Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant Luis Alberto Guillen of evading a police vehicle while driving recklessly (Veh. Code, § 2800.2 — count 1), evading a police officer while driving against traffic (Veh. Code, § 2800.4 — count 2), and unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a) — count 3). Defendant admitted having suffered one prior conviction under the three strikes law (Pen. Code, §§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)) and having served three prior prison terms (§ 667.5, subd. (b)). The court sentenced him to eight years in prison, consisting of six years on count 1 (upper term doubled for his prior strike conviction) plus one consecutive year each for two of the prior prison term enhancements. On appeal defendant contends the court (1) violated his constitutional rights by denying his motion for a continuance, and (2) erred by failing to instruct the jury that count 3 could be a misdemeanor pursuant to Proposition 47.

All statutory references are to the Penal Code unless otherwise stated.

The court also sentenced defendant to a concurrent term of 32 months on count 3 (low term doubled for his prior strike conviction). In addition, the court stayed punishment on count 2 under section 654 and struck for purposes of sentencing one of the prior prison term enhancements.

We initially affirmed the judgment in its entirety. Subsequently, our Supreme Court granted review, held the case pending the outcome of other cases on review, and ultimately remanded it to us to reconsider our prior holding on the Proposition 47 issue in light of People v. Lara (2019) 6 Cal.5th 1128 (Lara). Having reviewed Lara, we conclude that any instructional error was harmless, and thus once again affirm the judgment in its entirety.

FACTS

On the afternoon of March 7, 2014, Officer Joseph Zane was in uniform in a marked police vehicle, when he spotted a vehicle driven by defendant, and discovered through a license plate check that the vehicle was stolen. Zane tried to stop the vehicle by activating his overhead emergency lights, but the vehicle rapidly accelerated. Zane then activated his siren and pursued defendant.

During this initial part of the pursuit, defendant committed several Vehicle Code violations, including weaving through traffic, making a turn from the wrong lane, driving through a residential area at an unsafe speed, and failing to stop at a stop sign.

Officer Gloria Scott, also in uniform and driving a marked police vehicle, joined the pursuit after hearing Zane's radio dispatch that he was following a stolen vehicle. She too activated her emergency lights and siren during the pursuit. As the officers pursued defendant, he violated the Vehicle Code by driving through a red light without stopping. He also drove into oncoming traffic.

At a dead end, defendant slammed on his brakes, and the vehicle skidded, went over a curb, and crashed into a guardrail. Defendant and another man, who had been a passenger in the vehicle, fled the scene.

Scott pursued defendant, while Zane chased the passenger. Zane apprehended the passenger. After a search by other officers and two police dogs, officers apprehended defendant as well. Defendant was transported to a hospital for injuries sustained as a result of his contact with the police dog.

The owner of the vehicle (who had noticed it was missing from outside his Santa Ana home on the morning of February 23, 2014, i.e., almost two weeks earlier) confirmed he had not permitted defendant or the passenger to take the vehicle.

At trial, Zane and Scott positively identified defendant as the driver of the stolen vehicle. One of the officers who apprehended defendant positively identified him as well.

DISCUSSION

The court properly exercised its discretion to deny defendant's continuance motion.

Defendant contends the court's denial of his January 2015 continuance motion violated his constitutional rights to counsel and due process of law. He claims the ruling deprived his chosen counsel of sufficient time to prepare for trial.

Before defendant made his January 2015 continuance motion, the court had already granted him two prior continuances, resulting in a trial date of Thursday, January 22, 2015. At the trial call on January 22, defendant's appointed counsel — Deputy Public Defender, Madeline L. Berkley — answered "ready" for trial.

All dates refer to the year 2015, unless otherwise stated.

Attorney David Nisson then orally requested to become defendant's attorney of record. Nisson informed the court that he had filed a continuance motion.

Nisson's written motion, filed that same day (January 22), requested an approximately 45-day continuance. The motion stated that defendant had been trying to retain Nisson as counsel "for the last several months," and had finally saved up the funds to do so only the day before. Consequently Nisson needed time to prepare for trial.

The prosecutor opposed Nisson's continuance motion. She requested the court, however, to trail the case "until Tuesday or Wednesday of [the] next week" pursuant to her agreement with Berkley.

The court asked Nisson if he would be ready for trial "on Tuesday or Wednesday." Nisson replied that he had "just been given some discovery," and needed to review the discovery to determine whether it was all the discovery, in order to know whether he would be ready for trial on Tuesday or Wednesday. Berkley stated she had given Nisson "all the discovery" at defendant's request.

The court trailed the matter to Wednesday of the following week. The court stated it would rule on Nisson's substitution motion at that time and, if it allowed the substitution, it would analyze whether Nisson was ready to proceed or whether the orderly administration of justice had been disrupted.

On Wednesday, January 28, Nisson moved to substitute in as defendant's attorney of record. The court asked Nisson whether he was ready or whether he would instead move for a continuance. Nisson stated his preference would be "to continue and have more time," but, if the only way he could represent defendant was to answer ready, he could "do that" since he had been "given the discovery."

After a recess, the prosecutor and defense counsel Berkley answered "ready" for trial. The court confirmed with the prosecutor that "the nature of this case is [Vehicle Code section] 2800.2" (evading a police vehicle while driving recklessly). The court stated that the matter had been filed almost a year earlier and had been in general jurisdiction since May 2014, and that the trial had been scheduled for October 2014. The court found that, with "both sides answering ready with present counsel," "it would disrupt the orderly administration of justice" if a continuance were granted. The prosecutor confirmed that witnesses had been subpoenaed. The court stated that although defendant had a "right to have counsel of his choice," he had appointed counsel and now both parties were ready to go to trial. The court concluded that, unless it found a compelling reason to rebut its "presumption," based on the record, that the matter was ready to be tried, it would not grant a continuance based solely on new counsel entering the case, because such a continuance would disrupt the orderly administration of justice.

The court asked Nisson whether, if he took the case, he was ready to proceed. Nisson replied, "I can answer ready, Your Honor. I would just point out I was given all the discovery last week by Miss Berkley. I do note that what is still missing are . . . five or six D.N.A. samples submitted to the lab which I don't see any results from. I did get an email from [the prosecutor] last week which indicates there are some medical records from the hospital where my client was taken which I don't have, but I will answer ready." The court stated it would not allow a continuance unless it found good cause other than Nisson's need for more preparation time because he was new to the case. Nissan stated, "I'll answer ready, Your Honor."

The court allowed Nisson to become defendant's attorney of record, and relieved Berkley. The court placed the parties "on a one-hour on-call status," because no courtroom was available. The case proceeded to trial the morning of the next day.

Under the Sixth Amendment, a criminal defendant who does not require appointed counsel has the right "to choose who will represent him." (U.S. v. Gonzalez-Lopez (2006) 548 U.S. 140, 144 (Gonzalez-Lopez).) Indeed, "'chosen representation is the preferred representation. Defendant's confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.'" (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).) "In addition, counsel, 'once retained, [must be] given a reasonable time in which to prepare the defense.'" (Id. at p. 790.) "[E]rroneous deprivation of the right to counsel of choice" is a structural error not subject to harmless error analysis. (Gonzalez-Lopez, at p. 150.)

But the defendant's right to retain counsel of his choice is not absolute. (Gonzalez-Lopez, supra, 548 U.S. at p. 151.) "[E]ven in cases involving the defendant's constitutional right to retain an attorney of his choosing, that right can be forced to yield if the court determines the appointment at issue will result 'in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.'" (People v. Alexander (2010) 49 Cal.4th 846, 871-872.) A trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness [citation], and against the demands of its calendar [citation]." (Gonzalez-Lopez, at p. 152.) A trial court may sometimes "make scheduling and other decisions that effectively exclude a defendant's first choice of counsel." (Ibid.) "The right to such counsel 'must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.'" (Courts, supra, 37 Cal.3d at p. 790.)

Similarly, the right to a continuance to facilitate choice of counsel is not absolute. (Courts, supra, 37 Cal.3d at p. 790.) Section 1050, subdivision (a) requires criminal cases be heard and determined "at the earliest possible time." To further this goal, a trial court can grant a continuance only upon a showing of "good cause." (Id., subd. (e); see also Cal. Rules of Court, rule 4.113 [requiring moving party to present "affirmative proof in open court that the ends of justice require [the] continuance"].) "A continuance may be denied if the accused is 'unjustifiably dilatory' in obtaining counsel, or 'if he arbitrarily chooses to substitute counsel at the time of trial.'" (Courts, at pp. 790-791.) "Where a continuance is requested on the day of trial, the lateness of the request may be a significant factor justifying denial absent compelling circumstances to the contrary." (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) Applying these principles, courts will deny last-minute continuances to change counsel where the defendant had a prior opportunity to find and prepare new counsel. (People v. Reaves (1974) 42 Cal.App.3d 852, 856; see People v. Brady (1969) 275 Cal.App.2d 984, 993-994 (Brady).)

We review for an abuse of discretion a court's denial of a defendant's motion for a continuance to enable his retained counsel to prepare for trial. (Courts, supra, 37 Cal.3d at pp. 790-791.) "[D]iscretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (People v. Beames (2007) 40 Cal.4th 907, 920.) "Although 'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality[,] . . . [t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.' [Citation.] Instead, '[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.'" (Id. at p. 921.) The defendant bears the burden to show an abuse of discretion. (Brady, supra, 275 Cal.App.2d at p. 992.) An "order denying a continuance is seldom successfully attacked." (Beames, at p. 920.)

We apply these principles here and conclude there was no abuse of discretion. Defendant was represented by the public defender for 10 months before he retained private counsel. On the day of trial, he sought to replace Berkley, who answered "ready" for trial, with a new lawyer. The court had continued trial at least twice at defendant's request. (People v. Blake (1980) 105 Cal.App.3d 619, 624 [additional continuance denied where defendant previously "was granted several continuances"].) Defendant's retained counsel, Nisson, answered "ready" for trial the day before the trial actually commenced. Finally, in denying defendant's continuance motion, the court considered the burden that an additional continuance would have placed on the prosecutor (who was ready for trial and had already subpoenaed witnesses) and on court administration. In sum, the court did not abuse its discretion by denying defendant's motion for a continuance for retained counsel to prepare for trial.

This case is distinguishable from Courts, where our Supreme Court held the trial court abused its discretion when it refused to grant a continuance to defendant Courts, charged with murder and use of a firearm, to facilitate his representation by an attorney he retained about one week before trial. (Courts, supra, 37 Cal.3d at pp. 787, 796.) Courts had contacted attorney Swartz and met with him several times to discuss fee arrangements. (Id. at p. 787.) At a trial setting conference, Courts' appointed deputy public defender "informed the court that [Courts] wanted a continuance in order to hire private counsel." (Ibid.) Courts explained that Swartz was to return that day from vacation and that he and Swartz needed to conclude financial arrangements. (Id. at pp. 787-788.) The judge "denied the request, explaining that it was 'too late for coming into court . . . to be asking for another attorney'; [Courts] could not 'wait to the last minute and say [he wanted] a continuance.' Later that day, [Courts] met with Swartz to discuss fee arrangements. Swartz indicated his willingness to represent [Courts] if 'some sort of continuance' were granted." (Id. at p. 788.) Eight days later, on the day set for trial, before another judge, Courts' appointed deputy public defender renewed the continuance motion. (Ibid.) Courts declared, "'[T]his is the first case of this magnitude that [the deputy public defender] has tried, and . . . he does not have the experience to properly represent me in this matter.'" (Id. at p. 789.) Swartz testified he believed, "in view of the seriousness of the charges, a continuance was necessary to protect [Courts'] right to a fair trial." (Id. at p. 788.) The judge denied the continuance motion. (Id. at p. 789.) In concluding the trial court had erred (id. at p. 796), our Supreme Court stressed that Courts had been "diligent in his efforts (1) to secure counsel of his own choosing before the date of trial, and (2) to apprise the court of his wishes at the earliest possible time" (id. at pp. 795-796). Indeed, Courts had "conscientiously informed the court of his efforts" (id. at p. 791) "more than a week before trial" (id. at p. 792). Swartz was on vacation when Courts made his continuance motion at the trial setting conference (id. at p. 792), which was only his second request for a continuance in the case (ibid.). No "considerations of judicial efficiency" existed, as the courts did not appear to be "particularly congested during this period." (Id. at p. 794.)

Here, in contrast, defendant first informed the court of his desire to retain a private attorney on the day scheduled for trial (prior to the case being trailed for six days). Thus, defendant failed to display Courts' level of conscientiousness. Nor did defendant demonstrate the same need for replacing his appointed counsel: The charges against him were less serious than the accusations against Courts. His appointed counsel, Berkley, answered "ready" for trial (with no questions raised about her ability to handle defendant's case), in contrast to Courts, where private counsel believed a continuance was necessary to protect Courts' right to a fair trial. Although Nisson did mention he had not received some D.N.A. lab results and defendant's hospital record, he said nothing about how significant that evidence might be to the defense. (See People v. Beeler (1995) 9 Cal.4th 953, 1003, abrogated on other grounds as stated in People v. Edwards (2013) 57 Cal.4th 658, 705 [to obtain continuance based on need for further discovery, defendant must "show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time"].) Thus, defendant failed to demonstrate his retained counsel reasonably needed additional time to prepare for trial. Finally, the interests of judicial efficiency weighed more heavily against a continuance in this case than in Courts: On the trailed trial date, the case had been pending in general jurisdiction for over eight months; the prosecution had subpoenaed witnesses and was prepared to proceed; and available courtrooms were scarce. The court properly weighed defendant's right to chosen counsel with adequate preparation time "'against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.'" (Courts, supra, 37 Cal.3d at p. 790.)

But defendant argues the court erroneously applied a presumption in favor of the "rapid and orderly administration of justice," rather than the constitutionally mandated "'presumption in favor of [a defendant's] counsel of choice.'" His assertion the court applied a formal legal "presumption" is based solely on the following statement made by the court on January 28, which we recite in context:

The Court: "Everybody is ready to go. We have the People answering ready. I can only infer that witnesses have been subpoenaed."

The prosecutor: "Absolutely."

The Court: "And although the defendant does have his right to have counsel of his choice, he has had appointed counsel, I can only again infer, for the duration of this. The parties have worked to get this case ready to go to trial. Present counsel obviously was appointed. She's worked to go to trial. The People have worked to go to trial. And unless I find a compelling reason to rebut the presumption that I have now formulated which is with this record, the missile is ready to be launched, that's my metaphor, it's ready to go. To grant a continuance solely because the new counsel is coming in would disrupt the orderly administration of justice."

Taken in context, defendant has misinterpreted the court's words. A fair reading of this passage shows the court essentially stated that it (the court) had reached a rebuttable factual conclusion (i.e., that the court had formulated its own "presumption" based on its own inferences and the record), that the parties were ready for trial.

In sum, the trial court properly exercised its discretion in denying defendant's continuance motion. Any instructional error under Proposition 47 was harmless.

Proposition 47 altered the law of theft so that the theft of property valued at $950 or less is now a misdemeanor, petty theft. (§ 490.2, subd. (a).) Vehicle Code section 10851 can be violated by a range of conduct, some of which falls within the definition of theft, and some of which does not. (Lara, supra, 6 Cal.5th at pp. 1135-1136.) It punishes one who takes or drives a vehicle with the intent to either permanently—or temporarily—deprive the owner of the vehicle. (Id. at p. 1136.) If a defendant violates Vehicle Code section 10851 by taking a vehicle with the intent to permanently deprive the owner that is theft subject to section 490.2, subdivision (a). "'As a result, after the passage of Proposition 47, an offender who obtains a car valued at less than $950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.'" (People v. Page (2017) 3 Cal.5th 1175, 1183.) Any other violation of Vehicle Code section 10851 is not theft and thus is unaffected by Proposition 47. (Lara, at pp. 1135-1136; Page, at pp. 1182-1183.) Accordingly, whether Proposition 47 applies to a violation of Vehicle Code section 10851 depends on the particular circumstances of the offense and the manner in which the People charge and try the case.

Defendant contends the court erred in failing to instruct the jury that to convict him of a violation of Vehicle Code section 10851 under a taking theory, it had to find the value of the vehicle exceeded $950. We initially rejected that theory, holding that Proposition 47 does not apply retroactively to a crime that, as here, was committed prior to the enactment of Proposition 47, even though the trial occurred after its effective date. Our high court concluded otherwise in Lara, supra, 6 Cal.5th at page 1135, holding that Proposition 47 applies retroactively in such cases.

Applying Proposition 47 here, we agree with defendant that the court erred in failing to instruct the jury that a taking violates Vehicle Code section 10851 only if the value of the vehicle exceeded $950. The jury here was instructed that defendant could violate Vehicle Code section 10851 by either taking or driving the vehicle without the owner's consent. And during closing argument, the prosecutor did contend that defendant stole the vehicle, though the argument was weak, unsupported by substantial evidence, and difficult to understand. Still, the argument was made, and thus the jury should have been properly instructed.

Nevertheless, the error was necessarily harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) An element of both counts 1 (reckless evading) and 2 (evading while driving against traffic) was that defendant was driving the vehicle. The jury convicted on those counts and thus necessarily found that defendant was driving the vehicle. And since the jury found all of the other elements of Vehicle Code section 10851 true, it necessarily follows that they found it true that he was driving the vehicle with the intent to either temporarily or permanently deprive the owner of the vehicle — a non-theft version of section 10851. Thus, the instructional error did not affect the outcome.

Moreover, nothing about this case turned on whether defendant was the one who stole the vehicle. As we noted above, the prosecutor's argument on this front was brief and weak — so weak, in fact, that defense counsel did not even bother to mention it in his closing argument. Instead, defendant's theory was that he was not the one the police saw getting out of the car — mistaken identification. Defense counsel also argued there was no evidence that defendant knew the car was stolen. This lack of focus on who stole the car provides an independent reason for concluding the instructional error here was harmless.

DISPOSITION

The judgment is affirmed.

IKOLA, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.


Summaries of

People v. Guillen

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 27, 2020
No. G052022 (Cal. Ct. App. Jan. 27, 2020)
Case details for

People v. Guillen

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LUIS ALBERTO GUILLEN, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jan 27, 2020

Citations

No. G052022 (Cal. Ct. App. Jan. 27, 2020)